Perhaps it is a blessing for President Barack Obama that he is not too impressed by or attracted to the countries of Europe, for in five, 10 or 15 years he is not likely to be spending much vacation time there.

The charge that he is an incompetent leader when it comes to foreign policy, and is the head of a foreign policy team that could be characterized as “the gang who couldn’t shoot strait”, received significant support this week when the President, acting through leaks to the New York Times, revealed that he personally directs and authorizes the targeted executions by predator strikes in Yemen and Somalia, and about a third of the strikes in Pakistan (the more difficult and complex ones).

In addition to blowing the cover, sources and methods of the CIA agent in Abbottabad (Pakistan) who helped find Osama Bin Laden (by misleadingly posing as a doctor sponsoring an immunization campaign), the President has revealed a great number of operational details about the secret operation that led to the killing of Bin Laden in his bedroom.

Obama is obviously leaking details of hitherto covert actions in order to enhance his standing on foreign policy issues, for political purposes.

Moreover, “to spike the football”, to brag to the country and the world about his achievement, he made it plain that the Pakistani government had not known of the Abbottabad operation. He left no room for ambiguity, which might have served to help avoid the government’s and the military’s humiliation, and also to obfuscate a little what was a flagrant violation of Pakistan’s soverignty.

As a result, U.S. relations with Pakistan are at a nadir, with no signs of improving significantly soon. Unless they do, the whole future of the Afghanistan venture will be placed gravely in doubt.

The Nation’s “Executioner in Chief”

But the above is mere background for the revelations this week, which raise far deeper issues of character, issues which go far beyond competency.

The Observer will never think of Barack Obama in the same way in the future, now that he has revealed through anonymous government sources that he has become the nation’s “Executioner in Chief”. To the extent these actions cannot be justified under international law–and a great number clearly cannot be, he could of course be termed the nation’s “Assassin in Chief”. This is the reason he may have to choose his travel plans carefully in five, 10 or 15 years.

Assuming the power and moral authority of a god, Obama, the leader of the nation’s foreign policy “juggernaut”, has decided that he will be the person who decides who will live or die, which members on the “kill list” will die today, as a result of his pulling the trigger on the drone and special operations killing machine of the United States. The list is updated at a weekly government meeting by teleconference, with a hundred participants, who add and subtract names, and then pass the “nominations” list to the Oval Office.

Obama has become like a vengeful god who willingly kills people when he doesn’t even know their names, on the basis of their bad associations (e.g., membership in a bad or “terrorist” organization), their bad social profile (e.g., males over 14 years old, acting in “signature” bad patterns), or simply the fact they may be in the wrong place at the wrong time. Obama has taken “guilt by association” to an entirely new level, that of “execution for association”.

The news, while not entirely new, is incredibly shocking. The president assassinates people every day, or almost every day. Without judicial process. Without any accountability under either domestic or international law.

Justification in accordance with a legal memorandum which is itself classified is no legal justification at all, at least not in a democratic state governed by law. The duty of public legal justification of government actions is an absolute and bedrock principle of the rule of law, on both the domestic and the international levels.

His Secretary of Defense, Leon Panetta, performed a similar function authorizing CIA drone strikes when he was Director of Central Intelligence. As Secretary of Defense, he may now be approving similar strikes by the military when they are not referred to Obama to pull the trigger.

Let us stop and think for a minute.

What does it mean when our President, on a daily or almost daily basis, from the Oval Office or from wherever he may be, personally decides to kill one or a number of people, and in effect pulls the trigger, perhaps watching on a live video feed the execution of his order?

Can we speak meaningfully of “civilian control of the military”, when the president himself assumes a wartime combat role, and in effect functions not as a check on the military, but as an enabler, as a killer himself?

What does the daily participation in such activities do to an individual’s mind, and more importantly, to his soul?

We’ve known for some time that the President had a double character, that he was in the classical sense a Doppelgänger, but only now can we begin to appreciate how crooked one of his two characters has become, how warped and twisted it now appears under the examining power of any moral lens.

He exercises now the awesome powers that dictators in the past have ascribed to themselves, men like Stalin and Hitler, and others of more modern vintage.

What does it tell us about a person when we learn he is willing to kill an innocent woman or child, or boy or man for that matter, if it is part of the cost of killing his intended target, or even of killing a group of people who have the characteristics of the enemy, who he would gladly kill by name if only he knew their names?

What does it tell us that he is willing to kill that innocent woman and that child, not as unintended collateral damage but as quite foreseeable results of his pulling the trigger?

In what moral universe does he reside?

His apologists say that in moral terms he lives in the world of St. Thomas Aquinas (1225-1274), and the latter’s justifications of “just wars” and “unjust wars”–as understood in the thirteenth century. In understanding Aquinas and other moral authorities, interpreted for him by his spiritual guide who is “almost like a priest”, John Brennan, Obama is also relying on a former CIA official who was at the heart of the Bush torture program, and who got comfortable with torture.

“The end justifies the means” seems to be the operative principle here.

This principle, when all the words and moral posturings are parsed, is the principle that is followed, the principle that is operative. This principle operates, in the Oval Office and elsewhere in the government, under the leadership of President Obama, despite the fact that the entire constitutional and legal history of the United States has been founded on a rejection of the pernicious idea it expresses.

How could a president involved on a daily or almost daily basis in such god-like decisions regarding which specific individuals will live or die–based on baseball cards summarizing the pertinent facts in favor of their death or survival, and involved further in the actual conduct of the extrajudicial killing operation, how could such a person dispassionately lead the government in designing its foreign policy and conducting its foreign affairs?

The warrior appears to have been captured by the wrenching emotional experience of war-fighting, of personally fighting the war. In fact, it is quite conceivable that Obama is suffering from a form of post-traumatic stress disorder (PTSD). In thinking about his daily routines, and the war-fighting component of his life each day, it may be useful to review the DSM-5 criteria–the diagnostic criteria of the current proposed revision of the Diagnostic and Statistical Manual of Mental Disorders (DSM), which is the authoritative diagnostic guide for mental conditions developed and used by psychiatrists and other mental health professionals.

Obama appears to think only in terms of perpetual warfare, like the warfare he is engaged in, personally, on an almost daily basis.

He has no vision of peace, and is unable to use his imagination to explore actions that might lead to peace. Beyond speeches, his foreign policy seems to be primarily reactive in nature. He has led few successful international initiatives. His administration has not secured a single multilateral international convention (treaty) of any great significance.

He has no appreciation of international law, which is a priori a fundamental building block of peace. One cannot imagine nations living together in peace without binding rules governing their behavior, including “rules of recognition” permiting the identification of such rules, and ultimately some kind of third-party judgment or decision as to the validity of conduct alleged to violate the rules. All of these rules, including those establishing an impartial judgment process, are known as rules or norms of international law.

In fact, there has been quite a lot of history since St. Thomas Aquinas. The Thirty Years’ War (1618-1648) led to the founding of international law and the modern system of nation states through the writings of Hugo Grotius and the Peace of Westphalia in 1648.

That system of international law has developed over a period of more than three and a half centuries, and in particular following the ineffable horrors of World War I (1914-1918) and World War II (1939-1945).

There is a body of binding international law governing the use of force, which is applicable to drone strikes including the selection of targets. There is also a body of international law that prohibits the use of torture.

Obama, mumbling about Thomas Aquinas and the theoreticians of the “just war”, under the guidance of a high priest who himself became comfortable with torture and violation of the international law prohibiting torture (and U.S. law as well), has in effect turned his back on those three and a half centuries of developments in international law.

In justifying his drone and special operations activities, he has distorted the “law of war” or international humanitarian law, which has developed to mediate the horrors of war and to spare civilians, in order to purportedly justify these activities–without, however, subjecting his legal arguments to impartial international judgment.

The world America’s “Assassin in Chief” envisions is a world where he and John Brennan, and Leon Panetta, or their successors, will still need to meet weekly, or more often, as will a “nominations” group composed of a hundred other government officials, to decide who shall live and who shall die, as a result of their decisions, in the coming week or weeks.

Who, aside from the president himself, is responsible for Obama’s double character dragging him down into a dark and lightless place where even his soul cannot breathe?

Could it be the legions of fellow citizens who couldn’t take the trouble to think seriously about what Bush and then Obama were doing with their drone and special operations programs? Could it be the foreign policy experts, political leaders, and journalists who may have felt uneasy but who did not act, or who even willingly, gladly, drank the cool-aid as we descended into this moral abyss?

The Trenchant Observer

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For links to other articles by The Trenchant Observer, click on the title at the top of this page to go to the home page, and then consult the information in the bottom right hand corner of the home page. The Articles on Syria page can also be found here.

In previous articles, The Trenchant Observer has pointed to some of the troubling issues in international law raised by the use of unpiloted aircraft or drones in situations removed from the active battlefield in an on-going armed conflict.

Now, with other countries driving to develop comparable military capabilities in the form of drones, some as tiny as bugs, the short-sightedness of U.S. military policy regarding drones has come fully into view.

Moreover, as far as is publicly known, the United States has done nothing to develop in cooperation with other countries new international legal regimes and norms that might help to control what appears to be a headlong rush toward real anarchy among the nations of the world.

President Barack Obama rarely, if ever, speaks of international law. In his Nobel Prize acceptance speech, he spoke not of international law and legal norms, but rather of international “rules” or “norms”. The words “international law” are absent from his discourse.

One consequence has been an approach to international law that can be summed up as “If I can get away with it I can do it,” a formulation that goes back to Justice Oliver Wendell Holmes Jr.’s famous dictum about “the bad man theory of law”.

The system of international law is different from the domestic system in which a “bad man” might focus on the law only in terms of what he might be able to get away with. For the nations that are subject to international law are themselves the creators of the norms of international law. They are at once the legislature, the sheriff and the potential offender. This creates a dual responsibility on the part of nation states and their lawyers: They must not simply interpret international legal norms in a permissive way that allows them to do what they want, but also act to safeguard and strengthen the system of international law, and the way international legal norms wiil be interpreted by other countries. This is sometimes referred to by international lawyers as the “double-function” (or “dédoublement fonctionnel”) of international lawyers and states: in choosing a course of action they must not only seek to pursue their own short-term objectives, but also the critically-important longer-term objectives of building a viable international legal order that will contribute to their own security.

It is precisely in this area, of the obligation to build future international norms and regimes, while not weakening those that exist, that the United States has utterly failed with respect to drones. In past eras, legal regimes to prevent the use of space for military purposes, or the seabed, were developed in order to shape the future environment in which force might be employed. This the Obama administration has failed to do with respect to drones, both as a result of a very short-sighted pursuit of immediate military advantages through their use, and as a result of the fact that President Obama does not seem to understand very deeply the function of international law in safeguarding the nation’s security.

To facilitate reflection on these issues and the legality under international law of the use of drones, a review of the following articles previously published here might be useful.

U.S. Targeted Assassinations Violate Citizen’s Right to Life and Due Process, Undercut International LawFebruary 3, 2010

As Thomas M. Frank (1931-2009), a distinguished international lawyer and professor of international law at New York University, and Edward Weisband once observed, we should be careful whether to observe and how to interpret international law, because “the law you make may be your own.”

The Center for Constitutional Rights and the American Civil Liberties Union have filed suit against the Treasury Department for rules that require them to obtain a license before they can challenge the inclusion of Anwar al-Aulaqi on the U.S. list of individiduals who may be targeted for extrajudicial execution.

The targeting of Al-Aulaqi raises questions regarding the bases of the international law governing the use of force. Beyond the question of whether the U.S. is or is not violating the most basic norms of iternational law, the Al-Alauqi case raises fundamental questions relating to our international legal strategy and our vision of the future world we hope to shape. On April 7, 2010, we wrote the following:

The United States has gotten itself into a terrible jam, having adopted the legal justification of the Bush administration for targeted killings.

The Washington Post reports today that,

A Muslim cleric tied to the attempted bombing of a Detroit-bound airliner has become the first U.S. citizen added to a list of suspected terrorists the CIA is authorized to kill, a U.S. official said Tuesday.

Anwar al-Aulaqi, who resides in Yemen, was previously placed on a target list maintained by the U.S. military’s Joint Special Operations Command…

Because he is a U.S. citizen, adding Aulaqi to the CIA list required special approval from the White House, officials said. The move means that Aulaqi would be considered a legitimate target not only for a military strike carried out by U.S. and Yemeni forces, but also for lethal CIA operations.

“He’s in everybody’s sights,” said the U.S. official, who spoke on the condition of anonymity because of the topic’s sensitivity….

–Greg Miller, “Muslim cleric Aulaqi is 1st U.S. citizen on list of those CIA is allowed to kill,” Washington Post, April 7, 2010

If this death warrant is executed in circumstances that do not justify the use of force in self-defense, either at the international or at the domestic level with the permission of the territorial state, its execution may constitute a war crime.

Some lawyers have won the argument within the Obama administration that it is lawful to kill a member of a terrorist organization, particularly if he has been involved in past acts of terrorism, wherever he can be found.

This argument is based on provisions of humanitarian law or “the law of war” that distinguish between combatants who are lawful targets and non-combatants who are not.

It ignores, however, the fact that provisions of humanitarian law are themselves limited by key provisions of the United Nations Charter, particularly Article 2 paragraph 4 which prohibits the use of force against the territorial integrity or political independence of any state, except in the case of self-defense against an armed attack as provided in Article 51.

It is universally recognized that Article 2 paragraph 4 is a norm of jus cogens, or mandatory law from which there can be no exception. Humanitarian law grants no right to act beyond the limitations of this prohibition.

The use of lethal force to punish past actions, moreover, constitutes an armed reprisal, which is universally recognized as prohibited by international law.

In other cases, where the territorial state grants its permission to a foreign state to carry out a targeted killing, such a killing is legal under international law only if it meets the requirements of international human rights law. For the territorial state can cede to another state no greater rights than it itself possesses, and indeed it is far from clear that it can do even this.

Both Article 2 paragraph 4 of the Charter and international human rights law allow for the use of lethal force as may be required for self-defense or for self-defense and the defense of others by the authorities of the territorial state.

In both cases the requirement is that force be used only as a last resort against an ongoing or imminent use of force by the target, or after judicial proceedings and due process of law.

This element is initially self-judging in character, opening the door to abuse. However, just as police allegations that they have acted in self-defense are subject to judicial review, the self-defense justification of a state conducting targeted killings, and of the individuals executing the state’s orders, are subject to review by the courts of other countries exercising universal jurisdiction and potentially, at least in the future, by the International Criminal Court. Actions taken by a state in exercise of the right of self-defense are, moreover, to be reported to the U.N. Security Council under Article 51 of the Charter.

The use of force against an individual who has laid down his arms or ceased and desisted from active participation in attacks (or, in the language of humanitarian law, has withdrawn from combat or placed himself hors de combat) is an extrajudicial killing or assassination, and would also constitute a war crime.

The problem here is that the U.S. government has become so accustomed to being prosecutor, judge and executioner that it has forgotten that international legal norms are involved, whose content and validity are necessarily determined by others, and that the ultimate validity of the legal justifications for targeted killings are likely one day to be determined by the judges of an international court or a national court exercising universal jurisdiction.

Just as individuals who participated in the “harsh interrogation techniques” program carried out under the Bush administration would be well advised to carefully choose the countries they travel to, now but also particularly in five or ten years, those individuals currently involved in the targeted killings program should also be very confident they are acting in lawful exercise of the right of self-defense when executing their orders.

For if their actions do not satisfy the requirements of self-defense, they constitute the commission of unlawful assassinations, and probably war crimes. As established at Nuremberg, the argument that such actions were carried out under the orders of superiors, or “due obdience”, is not a permissible defense. Nor is the argument that the defendant believed he was acting in accordance with international law likely to be given any weight as a defense.

The United States has now become an official hit squad, which will go out and kill anyone on its list of targetable individuals.

Yet it is hard to see how the United States can kill its way to peace, in Afghanistan or in the struggle against terrorists in different countries throughout the world.

Whatever the short-term gains from the current approach, and it is far from clear that it does not create more terrorists than it kills, President Obama and his international lawyers need to rethink their approach to targeted killings.

They need to reexamine the issue, both in order to avoid extrajudicial executions and assassinations, and to shape the standards which will also guide other states in the future in deciding whether or not to put someone on a hit list and then to go out and kill him.

It is time to back off from the Wild West, and to return to civilization and the task of building out a viable international legal order.

(end of April 7, 2010 article)

See also the following articles by the Observer:

Targeted Killings by Drone Aircraft: A View From India, and Some Observations, May 20, 2010

Other articles by the Observer on targeted killings may be found by entering “Targeted Killings” in the Search box on the lower right side of the home page.

Today, Philip Alston, a highly distinguished human rights expert and U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, published a report addressing international law issues raised by the policy of “targeted killings”.

Fundamental questions exist about the permissibility of such attacks in situations where they are not conducted in strict compliance with the requirements of immediacy, necessity and proportionality in exercise of the right of individual or collective self-defense, in accordance with Article 2 paragraph 4 and Article 51 of the United Nations Charter.

In particular, the legal justification based on the distinction under international humanitarian law between combatants and non-combatants, which is used to justify such attacks against anyone believed to be associated with the Taliban or other insurgent groups in Afghanistan and Pakistan, fails to take into account the fact that Article 2 (4) and Article 51 of the U.N. Charter are norms of jus cogens, or mandatory norms from which there can be no derogation. In other words, these norms of jus cogens are superior to and limit any rights to use force that may be contained in international humanitarian law.

Consequently, targeted killings by drone aircraft are lawful only to the extent they meet the requirements for responding to an imminent or ongoing “armed attack” against “the territorial integrity or political independence” of Afghanistan or Pakistan, or if conducted with the consent of the territorial state they meet the requirements of international human rights law. International human rights law permits the use of force in self-defense or in defense of others by state authorities. It does not permit the widespread targeting and execution of criminals or terrorists without due process of law, when the requirements of self-defense are not met.

Three distinct bodies of law are relevant here: 1) the international law governing the use of force articulated in Article 2(4) and Article 51 of the U.N. Charter, which has become customary law and jus cogens; 2) international humanitarian law; and 3) international human rights law. It should be recalled that each of these bodies of law has as among its essential purposes the avoidance or reduction of the killing and injuring of individual human beings. The original purpose of the distinction between combatants and non-combatants in international humanitarian law was to limit attacks on civilians and civilian targets in traditional battlefield settings.

It is noteworthy that, according to the article from India, a very large number of innocent civilians have been killed in targeted killings by U.S. drone aircraft.

See also earlier articles by The Observer on the subject of targeted killings:

U.S. Targeted Assassinations Violate Citizen’s Right to Life and Due Process, Undercut International LawFebruary 3rd, 2010

The lawfulness of targeted killings by drone aircraft under international law should be of great concern to the United States, for perceptions of legitimacy of its actions involving the use of force are likely to have a broad impact not only on populations in the Middle East and South Asia, but also on the populations and governments of its coalition allies in Afghanistan, as well as on other nations throughout the world.

European allies in a coalition conducting such attacks may be particularly attentive to whteher or not they are conducted in accordance with international law. Article 25 of the German Basic Law (Grundgesetz) or Constitution, for example, establishes the following:

Article 25
The general rules of public international law constitute an integral part of federal law. They take precedence over statutes and directly create rights and duties for the inhabitants of the federal territory.

German participation in coalition actions involving targeted killings by drone aircraft in situations where such actions do not meet the requirements of the right of self-defense against armed attack, or self-defense in compliance with international human rights law (when the attacking state is acting with the consent of the territorial state), would appear to present serious legal issues for the German government. Article 25 of the Basic Law includes both customary international law and the special norms of customary international law which have achieved the status of jus cogens.

A further point of interest is that the United States is using non-military personnel to conduct these attacks, whether C.I.A. agents, “contractors” on the ground gathering targeting information and therefore participating in the attacks, or private “contractors” acting as “pilots” of the drones from facilities thousands of miles away.

If some of the actions in which they are participating are not legal under international law, and it is suggested above that many may not be, then these individuals could potentially face criminal liability in the future for the commission of war crimes. While the U.S. has taken vigorous action to prevent its citizens from from being tried either under the jurisdiction of the International Criminal Court or the universal jurisdiction that may be exercised by national courts of any country when their domestic law authorizes them to do so, the historical trend is in the other direction. It is quite conceivable, if not likely, that within 10 or 20 years these individuals could become subject to arrest and trial when traveling abroad.

In any event, these targeted killings do not seem to be stopping the Taliban, which in Afghanistan still appear to be very present in Marja, the location of a much-touted recent American offensive, as well as in Kandahar province where a huge offensive by the United States and its allies is imminent or perhaps already underway.

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